Gordon v. State
| Decision Date | 10 May 2017 |
| Docket Number | No. 3D16–626,3D16–626 |
| Parties | Steve GORDON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jacob Addicott and Jonathan Tanoos, Assistant Attorneys General, for appellee.
Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
Appellant Steve Gordon appeals his judgment and sentence following a jury trial and conviction for strongarm robbery. Gordon contends that the trial court erred in denying his request for a "compound offense" jury instruction, and a verdict form which would have permitted the jury to select more than one lesser-included offense on the verdict form—specifically, either theft and assault, or theft and battery. Appellant also requests that this court remand for entry of a written order as to the lower court's oral pronouncement finding Gordon competent to stand trial. As to the first claim, we affirm, holding that there was no evidence at trial to support a compound offense instruction or a verdict form permitting the jury to find Gordon guilty of more than one lesser-included offense. As to the second claim, we remand for the trial court to enter a written order, consistent with its oral pronouncement, finding Gordon competent to stand trial.
The relevant acts comprising the crime are not in dispute, as a surveillance camera captured video of the entire encounter between Gordon and the victim. Gordon also provided a post-Miranda 1 statement to police confessing to the crime. However, the defense contended at trial that Gordon's actions constituted two lesser-included offenses (i.e., theft and assault or theft and battery), rather than the robbery as charged.
At trial, the female victim testified that Gordon approached her at a gas station while she was getting gas. Gordon asked if he could "borrow" two dollars for gas. During her testimony, the State played the surveillance video to the jury and, as the video played, the victim described the encounter:
[I] said sure. I had all my money in my back pocket. I'm pulling it out and as I'm pulling it out, he's walking up to me. I give him the $2. He sees that I have more so he's like, oh, can I get a 10 instead. I said, no, you can't, and then he snatched my money out of my hand and tried to make a run for it. That's when I grabbed him by his shirt. He starts pulling away and then he says, oh, I'm just kidding, and smiles at me. And I'm like, that's not funny. And then he starts to pull away again. At some point he, like, pushes me off and slaps my glasses off of my face. His shirt starts tearing down the middle so I started yelling for help, because I didn't know how long I could hold on to him.
The victim testified that each time she tried to take back the money Gordon had "snatched" from her, Gordon pulled away and "that's when he tried to push me off and ended up smacking my face and my glasses off." The State also introduced photographs which showed a cut to the victim's eyelid, an injury she sustained during her encounter with Gordon.
During the encounter, the victim yelled for help, and a Good Samaritan approached and ordered Gordon "to get down on the ground." Gordon started to comply and dropped the money. Almost immediately, however, Gordon jumped up and ran to his car. The Good Samaritan followed Gordon to the car, where the two tussled, and Gordon struck the Good Samaritan on the right side of his body. Gordon drove away and the Good Samaritan followed in his own vehicle while contacting police. Gordon was soon apprehended, waived his Miranda rights and gave a statement to police. The officer described Gordon's post-Miranda statement:
[Gordon] said he was sitting his vehicle next to the gas pump when he saw the victim arrive. When she got out of her vehicle, he got out of his, and he approached her, asking her for $2. The victim removed money from her right rear pocket, at which time he said, can I get ten, and she said no. At that point, he said that they began tussling. He went to grab the money out of her hand and they began tussling for the money. Once the victim began to scream, he says that he told her, I'm just playing.
Gordon did not testify at the trial, call any witnesses, or introduce any exhibits.
During the charge conference, defense counsel requested that the jury be instructed that robbery was a compound offense and proposed a verdict form that would allow the jury to find Gordon guilty of two lesser-included offenses—either theft and battery, or theft and assault.
The defendant's proposed jury instruction read as follows:
Gordon also proposed the following verdict form, which permitted the jury to consider returning a verdict on the compound offenses of theft and assault or theft and battery:
The State argued there was no factual basis for the compound instruction because there was no separation or temporal break of any kind, and the video clearly established a single sequence of continuous acts by Gordon.
The court denied Gordon's requested special jury instruction and proposed verdict form. The trial court instructed the jury, consistent with the standard instructions, that the jury could find Gordon guilty of the following lesser-included crimes: Category One lesser-included offenses of theft or assault; Category Two lesser-included offenses of robbery by sudden snatching, attempted strongarm robbery, attempted robbery by sudden snatching, and battery. The standard instruction on lesser included offenses permitted the jury to find Appellant guilty of "any lesser included crime" and further stated that "[o]nly one verdict may be returned as to the crime charged." The jury found Appellant guilty of strongarm robbery, as charged in the information. The court sentenced Gordon to three years' imprisonment. This appeal followed.
The concept of compound offenses are recognized in Florida. See, e.g. , Gian–Grasso v. State , 899 So.2d 392 (Fla. 4th DCA 2005) ; Bledsoe v. State , 764 So.2d 927 (Fla. 2d DCA 2000) ; Foster v. State , 596 So.2d 1099 (Fla. 5th DCA 1992) (Cowart, J., dissenting). Should the evidence support it, the trial court must instruct the jury on a compound offense and provide a verdict form that permits the jury to return a verdict of guilty as to more than one lesser-included offense. In fact, shortly after the trial in the instant case, the Florida Supreme Court amended the standard verdict form to permit the jury to consider, under appropriate circumstances, the returning of a verdict of guilty for two or more lesser-included offenses instead of the crime charged. See In re Std. Jury Instr. In Crim. Cases—Report No. 2016–02 , 199 So. 3d 234, 236 (Fla. 2016) ().2
The concept of compound offenses is closely related to the "afterthought" instruction which, under appropriate circumstances, can be given in a charge such as robbery. In fact, the standard jury instruction for robbery contains such a provision:
Implicit in the concept of "afterthought" is that a defendant might use force or violence against a victim, but without the taking of any property (and without motivation to take any property) of the victim.3 If, separate from this use of force or violence, a defendant subsequently takes the property of the victim as an "afterthought" (unaccompanied by, and accomplished without the use or threat of force, violence, assault or putting in fear), a defendant theoretically could be guilty of the two separate (and lesser-included) offenses of theft and assault, or theft and battery, instead of the charged offense of robbery. See, e.g. , Calafell v. State , No. 3D15–852, –––So.3d ––––, 2017 WL 1713308 (Fla. 3d DCA May 3, 2017) ; Burns v. State , 170 So.3d 90 (Fla. 1st DCA 2015) ; DeJesus v....
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In re Standard Jury Instructions in Criminal Cases—Report 2018-06
...only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking.Gordon v. State, 219 So.3d 189 (Fla. 3rd DCA 2017). This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1989 [543 So.2d 1205], 1995 [665 So.2d 212], ......
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Hargrett v. State, 4D16-2846
...in appropriate cases." In re Std. Jury Instr. (Crim)—Report No. 2012-09, 122 So. 3d 263, 287 (Fla. 2013). But see Gordon v. State , 219 So.3d 189, 194 (Fla. 3d DCA 2017) (refusing to make a per se rule that a robbery defendant is automatically entitled to a compound offense instruction and ......
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Moreno v. State, 3D15–2883
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